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Hillsborough Law – What does it mean?

September 19th, 2016

Our newest trainee, Abeer Sharma, analyses The Public Authorities Accountabilities Bill – a draft Bill launched by victims’ families would see public figures prevented from minimising responsibility at inquests

The 1989 Hillsborough Disaster – where 96 Liverpool Football club fans died in a human crush at a match in Sheffield, has left an indelible mark; particularly with respect to the tireless 27-year campaign fought by the families of the deceased to clear the names of their loved ones. This has been despite a cavalcade of media smears and the concerted effort of South Yorkshire Police and other public institutions to deflect blame onto the dead; framed within the prevalence of football hooliganism at the time of the disaster.

The Reason

The success of the campaign has recently led to the presentation of a new bill – The Public Authorities Accountabilities Bill or “Hillsborough Law”. The second inquest into the disaster laid bare the sheer scale of the depths to which the force and ambulance service sank in order to swerve accountability, defend narrow organisational interests and unnecessarily obfuscate public inquiry into their own wrongdoing. Indeed, Chief Constable of South Yorkshire Police David Crompton was suspended largely down to the conduct of the force’s lawyers during the inquest and its aftermath.

At common law there already exists a “duty of candour” and in statute under Regulation 20 Health and Social Care (Regulated Activities) Regulations 2014 in the context of healthcare. However, these duties have proven too narrow in their application. Other major public administrative failures such as at Mid-Staffordshire NHS Trust and child sexual abuse in Rochdale and Rotherham along with Hillsborough has given succour to the desire to codify and broaden the application of this duty within statute.

The Law

Hillsborough Law aims to ensure that all public authorities, officials and servants are under a duty to act in the interest of the public. Sections 1-3 of the bill read:

1. Public authorities and public servants and officials shall at all times act within their powers:

(i) In the public interest,

(ii) With transparency, candour and frankness.

2. Public authorities, public servants and officials shall be under a duty to assist court proceedings, official inquiries and investigations:

(i) Relating to their own activities, or

(ii) Where their acts or omissions are or may be relevant.

3. In discharging the positive duty under section 2, public authorities, public servants and officials shall:

(i) Act with proper expedition,

(ii) Act with transparency, candour and frankness,

(iii) Act without favour to their own position,

(iv) Make full disclosure of relevant documents, material and facts,

(v) Set out their core position on the relevant matters at the outset of the proceedings, inquiry or investigation,

(vi) Provide further information and clarification as ordered by a court or inquiry.

These sections impose robust, broad duties on those within the public sphere to be as open and honest as possible in discharging their general duties and conducting court proceedings, subject to few exceptions. Under Section 7, the duties in sections 1-2 also apply to private law matters where there is a public element.

Sections 10-12 are where the legislation starts to bare its teeth. In summary, subject to the exception of criminal investigation, a public official’s intention to not comply with the duties imposed by section 2 or recklessness in discharging their section 2 duties will make that person liable. Further, the bill catches those involved at the time of an incident who may no longer be involved with/employed at that particular public institution for omitting to provide witness statements and materials relating to their conduct and knowledge at the time of the incident.

What are the penalties? Section 15 is unambiguous on this:

15. “The penalty for an offence under any of sections 10, 11 or 12 shall be a term of imprisonment not exceeding X years and/or a fine not exceeding £Y”

What next?

The proposed bill will be looked at by the Bishop James Jones in his review. How the draft bill proceeds from there is yet to be seen and should it be put before Parliament, there is bound to be fevered discussion and amendments made before such legislation can be passed.

However, what we know at this juncture is that Hillsborough Law is a brave attempt to end the defensive, self-serving approach of public institutions when faced starkly by their severe failings. Time will tell whether the bill becomes law, but public appetite will likely be for this being a further battle that the families of the deceased and their legal teams can eventually win.